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Where’s the line between accident and criminality?

Wednesday, Jan. 4, 2017 5:08 PM

When a child dies because somebody did something stupid, should medical examiners certify the manner of death as an accident because no harm was intended? Or homicide – stupidicide, we sometimes call it – because the dumb thing that caused death was something we’re sure we’d never do?

A 14-month-old was found dead at home. A burn on the leg was covered by gauze held in place by an adult-sized prescription patch impregnated with the narcotic fentanyl.

That’s something I would never do. Damaged skin would absorb the drug faster than normal skin, and besides, a dose of a narcotic meant for an adult would likely be toxic to a baby.

That child’s family didn’t know those things. The mother was 16 years old and illiterate. The grandmother, for whom the patches were prescribed, couldn’t read, either. The “fentanyl” label meant nothing to either of them.

When the child was burned (by a falling iron, the mother said), she had gauze for a bandage but no tape.

This case seems like an accident to me, in part because I can imagine myself leaving a hot iron on the ironing board where a toddler might knock it off.

Would I think differently if the burn had been intentionally inflicted as punishment? The burn wouldn’t have caused death by itself. Application of the patch would still be stupid rather than malicious, but punishing a toddler by inflicting a burn is certainly something nobody should ever do. So given that scenario – relatively trivial inflicted injury leading to boneheaded but innocent decision leading to death – I’d go with homicide and let the courts sort it out.

Here’s another example:

Two children, 14 months and 2 years old, soil their diapers. Mom plops both in the tub with warm water running and the drain open, then leaves the room for “a few minutes.” When she comes back, the tub is overflowing and the baby is floating face down. She says the 2-year-old must have closed the drain.

Is leaving a toddler in a tub with the drain open a forgivable lapse of judgment or something a reasonable person would never do? Should the certification differ depending how long the mom was gone, where she went or why she left? Where’s the line between accident and criminality?

In Florida, a little kid escapes a caregiver’s attention and drowns in a home pool several times each year. I remember one child who drowned after falling head-first into a bucket of bleach water mom neglected to empty after scrubbing the floor.

Leaving a small child in, near or with access to water is something I’d never do because I’ve seen so many drownings. But I certify such deaths accidents because parents who lose a child this way always seem like perfectly responsible folks who on one day of their lives just weren’t careful enough.

Yet, another troubling scenario is the death a small child in a closed, hot car. Some of these cases – 20-some a year in the United States – are certified as accidents. No charges are filed. Others are called homicides, and caregivers are prosecuted. That’s not fair, but it’s next to impossible for everybody to agree on what is fair.

To determine culpability, courts consider what a “reasonable man” would do. But reasonable people do dumb things all the time, and medical examiners have no consistent rules for dealing with the fatal consequences.

Dr. Carol J. Huser, a forensic pathologist, served as La Plata County coroner from 2003-12. She now lives in Florida and Maryland. Email her at chuser@durangoherald.com.

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